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People v. Brown

Court of Appeals of Illinois, First District, Fourth Division

November 16, 2017

PERNELL BROWN, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 01 CR 15671 Honorable Jorge Luis Alonso, Judge, presiding.

          JUSTICE MCBRIDE delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion. Justice Ellis dissented, with opinion.



         ¶ 1 Petitioner, Pernell Brown, who was found guilty of first degree murder and sentenced to 50 years' imprisonment, appeals from the Cook County circuit court's order denying him leave to file a successive pro se postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). He maintains that he set forth a colorable claim of actual innocence based on affidavits that he argues identify someone else as the shooter. Because the affidavits do not raise the probability that it is more likely than not that no reasonable juror would have found petitioner guilty, we affirm.

         ¶ 2 In denying petitioner leave to file his successive postconviction petition, the trial court summarized the relevant trial evidence, which we repeat here due to the nature of petitioner's claims.

         ¶ 3 Petitioner's conviction stems from the January 16, 2001, shooting of Robert Byrd, known as "Rah-Rah, " who was killed in the Super Sub Shop on North Cicero Avenue in Chicago, Illinois.

         ¶ 4 At trial before Judge Lawrence Fox, Walter Thomass[1] testified that he was 48 years old and lived in the neighborhood where the offense occurred. On the evening of the shooting, Thomass went to the sub shop with some friends. About 1:15 a.m., Thomass was standing by the glass front door of the sub shop when he observed a small red Buick pull up in front of the shop. There were two people in the car. The driver got out, reached under the driver's seat, and pulled out a gun. He walked into the sub shop and fired the gun twice. Thomass fled the shop, then heard several more shots after he left. Thomass testified that petitioner was the driver and shooter. He stated that he recognized petitioner from the neighborhood and had seen him approximately 10 or 15 times before the shooting. He also testified that he identified petitioner as the driver and shooter in a photo array on the day after the shooting and in a subsequent police lineup on May 26, 2001. Thomass also testified that he accompanied detectives, who walked him through a parking garage, to see if he could identify the vehicle that was used in the offense. Thomass spotted the vehicle and identified it for the detectives.

         ¶ 5 Venice Blackburn testified that she was 47 years old, that she had four children who were between 15 and 28 years old, and that she lived in the area where the shooting occurred. Blackburn was with some friends at the sub shop shortly before 1 a.m. on January 16, 2001, and she was still there, laughing and joking, when someone came in shooting. She testified that, after being shot three or four times, Byrd fell to the floor and reached toward Blackburn's leg. Blackburn testified that petitioner was the shooter. She also testified that she had previously identified petitioner as the shooter in a photo array later in the morning of January 16, 2001.

         ¶ 6 Blackburn testified that she had lived in the neighborhood where the shooting occurred for 13 or 14 years and that she had seen petitioner in the neighborhood for the same length of time. Although Blackburn testified that she did not personally know petitioner, she also stated that he used to play basketball with her children.

         ¶ 7 Both Thomass and Blackburn admitted to using narcotics on the day of the shooting. Blackburn stated that she was still high at the time of the shooting but that neither her memory nor perception were impaired. Blackburn testified that she had two drug convictions, for which she received a sentence of probation. Blackburn completed probation satisfactorily, and at the time of her testimony, she had participated in treatment and had not used drugs in over two years.

         ¶ 8 Cory Gilmore testified that he grew up with individuals who went by the nicknames of "Rah-Rah" and "Von, " whom he identified as petitioner. The prosecutor asked Gilmore if he recalled speaking with the police on February 7, 2001, and Gilmore responded that he did not remember because his drug use impaired his memory. Over petitioner's objection, the trial court allowed the prosecutor to present Gilmore's handwritten statement given to an assistant State's Attorney (ASA).

         ¶ 9 In the statement, Gilmore stated he had known Byrd his whole life. On January 16, 2001, Gilmore was at the Super Sub Shop with Robert Curry when Byrd and two other individuals arrived. He went outside, and petitioner pulled up in a two-door maroon or red Regal. Petitioner was by himself. Gilmore talked to petitioner at the car window. Petitioner did not say anything about Byrd, and Gilmore did not see a gun at that time. Petitioner then pulled off alone in the car. Gilmore then went back inside the sub shop and got Curry so they could leave. Gilmore said they went to a strip club and waited for some other people. After waiting 15 minutes, Gilmore called his friend to see where he was. Gilmore was told by his friend to come back to the sub shop. Gilmore and Curry returned to the sub shop and saw Byrd on the ground with police around him. He never saw who shot Byrd.

         ¶ 10 Robert Curry testified that on January 16, 2001, he was in the vicinity of 611 North Cicero Avenue with Gilmore. He went into the sub shop and saw Byrd but left because the place was too crowded. He left with Gilmore. They went around the neighborhood and came back. When they returned, Curry saw an ambulance, and they tried to find out what happened.

         ¶ 11 Kevin Tenard identified petitioner at trial and testified that he knew him by the nickname "Von." Tenard stated that on January 16, 2001, at approximately 1:30 a.m., he was in the vicinity of 4817 West Ferdinand Street, which was the home of Iesha Rials, the mother of petitioner's child. Tenard was there with his brother and Rials's cousin. At that time, petitioner drove up in a red car. Petitioner gave Tenard the keys and asked him to give the keys to Rials. Tenard saw another person with petitioner, but he did not know who he was. Petitioner and the other person then got into another car and left.

         ¶ 12 Detective Michael Delassandro, who investigated Byrd's shooting, testified that Thomass and Blackburn identified petitioner as the shooter in photo arrays on the morning after the shooting. Detective Delassandro also met with Iesha Rials at 4817 West Ferdinand Street to get Rials's car, a 1989 red Buick. She took him to the garage behind the building at that address, and Detective Delassandro drove the vehicle to area 4. Detective Delassandro asked Thomass and Gilmore to view the vehicle. Both witnesses identified the vehicle as the one they saw petitioner driving. On February 8, 2001, Detective Delassandro met with Tenard, who told him that he was sitting on the porch at 4718 West Ferdinand Street at approximately 1 a.m. on January 16, 2001. Tenard said that he observed a red Buick driven by petitioner, which he parked in front of that address. Petitioner waved Tenard over and gave Tenard the car keys to give to Rials. Petitioner then got into a car that had pulled up behind the Buick and left.

         ¶ 13 In his defense, petitioner attempted to show that his deceased brother, David Payton, was the actual shooter. Petitioner's mother, Tawana Brown, testified that she had two prior convictions for drug offenses, for which she received four years' imprisonment for each. Brown testified that petitioner was living in Indianapolis at the time of the shooting. She further testified that Payton had once identified himself as petitioner while seeking medical treatment and that Payton had been living in Chicago at the time of the shooting. She did not, however, testify that petitioner and Payton looked alike. Elaine Jefferson, a friend of petitioner's mother, testified that petitioner was staying with her in Indianapolis on the night of the shooting.

         ¶ 14 Petitioner's trial counsel recalled Blackburn, and counsel presented her with photographs of petitioner and Payton. Blackburn admitted that she had previously been shown the photographs by the defense investigator. She indicated that she did not know who in the photographs was the shooter and that they "favor[ed]" each other. On cross, the State asked Blackburn why she could not identify the shooter from the photographs, and she responded that "you can't see them. I mean, they look alike on there. You can't hardly tell." The State then asked if there was anything in particular about the photographs that prevented her from being able to tell who the shooter was, and Blackburn responded that "Well, one thing, you can't see them clearly, so you really can't [identify them.]"

         ¶ 15 The trial court entered extensive factual findings, spanning almost 14 pages of the record. Regarding some of petitioner's challenges to the eyewitnesses, the court considered both Thomass's and Blackburn's ability to view petitioner at the time of the shooting and subsequent identifications to police, either by photo array or lineup, as well as their credibility, including their admitted drug use. The trial court further reviewed their testimony alongside the videotape of the shooting, which provided corroboration of their accounts. Specifically, when considering their opportunity to view the shooter, the trial court noted, "Thomass was standing by the door looking out as the car pulls up outside and the shooter exits and walks into the sub shop." Further, "[t]he shooter is basically right in front of Thomass when he starts shooting and continues to walk forward, shooting as he walks." Although neither one of the eyewitnesses appeared to have had more than a few seconds to see the shooter's face while he was actually in the sub shop, the court noted that "[a]t different times the shooter comes within a couple of feet of both witnesses." The court also noted that "[b]oth Thomass and Blackburn testified that they recognized defendant from the neighborhood."

         ¶ 16 The trial court stated:

"While there's some minor inconsistency in impeachment in their testimony, what strikes me most about Thomas [sic] and Blackburn is that neither one of them really has any reason to want to be involved in this case as a witness, which was apparent in their manner and demeanor on the witness stand.
While Blackburn knew Rah Rah, which is the victim's nickname, from the neighborhood and appears to be joking around with him before he is shot, Thomas [sic] only knew who he was and there isn't any evidence of a close relationship with him or any other relationship with the defendant who is known by the name Von which would influence either one of these two people to come in here and falsely accuse the defendant or say it was him if they weren't certain it was.
Wouldn't it be much easier for both of them to say I'm not sure, I didn't get a good look at the guy, or something like that?
On the other hand, doesn't it make more sense that they're just two people from the neighborhood who happened to be in the sub shop at the time of the shooting, get hauled into the police station, and rather than lie to the police to avoid responsibility they cooperate and tell the truth and identify defendant because they did get a good enough look at him and they had seen him before in the neighborhood."

         ¶ 17 The court found petitioner guilty of first degree murder, then sentenced him to 50 years' imprisonment.

         ¶ 18 On appeal, petitioner maintained that (1) the State failed to prove him guilty beyond a reasonable doubt because the testimony of identification witnesses was not credible, (2) he was denied his sixth amendment right to confrontation, and (3) the trial court improperly admitted the prior inconsistent statements of a witness pursuant to section 115-10.0 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2000)). People v. Brown, No. 1-04-2048 (2006) (unpublished order under Illinois Supreme Court Rule 23). We affirmed petitioner's conviction, specifically finding that "[t]he trial judge completely discussed all the evidence presented at trial by both parties. Clearly, the trial court considered the credibility of both Thomas[s] and Blackburn and their drug histories as well as any inconsistencies in their testimony." Id. at 18.

         ¶ 19 In December 2006, petitioner filed a pro se postconviction petition, alleging multiple claims, including ineffective assistance of trial and appellate counsel. Judge Fox, who had presided over petitioner's trial, summarily dismissed the petition at the first stage of postconviction proceedings, and petitioner appealed, arguing that the trial court erred in dismissing his petition because he presented the gist of a claim of ineffective assistance of trial counsel based on counsel's failure to present evidence as to the effect of narcotics on the observational abilities of the key identification witnesses, and the gist of a claim of ineffective assistance of appellate counsel for failing to raise trial counsel's ineffectiveness. We held that petitioner had failed to support his claims with any affidavits, records, or other evidence and had failed to explain the absence of supporting documentation, and we concluded that summary dismissal was proper. People v. Brown, No. 1-07-0406 (2008) (unpublished order under Supreme Court Rule 23).

         ¶ 20 In June 2009, petitioner sought leave to file his first successive pro se postconviction petition, which alleged his actual innocence based on his own affidavit and an affidavit from Martell Halbert. Petitioner asserted that he was innocent and his deceased brother Payton was the actual shooter. In his affidavit, petitioner stated that in early 2007, he learned of two witnesses to the shooting, Martell Halbert and Mario Nixon. Both were present in the sub shop at the time of the shooting but had not been interviewed by the police. Petitioner stated that he was unable to procure an affidavit from Nixon but that Nixon would be willing to sign one. Halbert stated in his affidavit that early on the morning of the shooting, he and Nixon had been walking to the sandwich shop where the incident occurred. Payton offered to give the men a ride, drove them to the sandwich shop, and left. About 10 or 15 minutes later, Payton returned to the shop with a pistol and fired several gunshots at the victim "without hesitation." "Halbert was never interviewed by police and was unaware that he had been captured on the surveillance camera in the store." People v. Brown, 2012 IL App (1st) 092597-U, ¶ 8.

         ¶ 21 Judge Fox denied petitioner leave to file the petition, and we affirmed, finding there was no legal basis to consider the purported testimony from Nixon, where petitioner had failed to attach an affidavit from him. Halbert's affidavit was not newly discovered evidence because both Halbert and Nixon were visible in the surveillance video of the sub shop. The record showed that the surveillance footage in question was available to petitioner before trial, and it was played at trial on at least two occasions. Further, petitioner acknowledged in his petition that the two witnesses "were captured *** on the surveillance videotape, " and thus, we found that petitioner should have discovered Halbert at or before trial through the exercise of minimal due diligence. Id. ¶¶ 17-18. We also found that petitioner's claim failed because the evidence was not of such a conclusive character that it would probably change the result on retrial, given the strong evidence at trial. We concluded that the proffered evidence raised a similar set of facts (i.e., that Payton was the actual shooter and that petitioner was living out of state) that had been previously heard and rejected by the fact finder. Accordingly, we found that Halbert's affidavit did not "raise the probability that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." (Internal quotation marks omitted.) Id. ¶¶ 17, 19 (quoting People v. Edwards, 2012 IL 111711, ¶ 24, quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

         ¶ 22 On September 24, 2014, petitioner sought leave to file a second successive pro se postconviction petition, alleging actual innocence based on the sworn affidavits of Terrell Austin and Randy Norwood. Petitioner contended that he first learned of this evidence in the summer of 2014.

         ¶ 23 Austin's April 8, 2014, affidavit states, in relevant part, that he was a lookout for heroin dealers on the 600 block of Cicero Avenue and on January 16, 2001, he was looking for "an associate" named Robert Byrd, also known as "Rah Rah." While next door to the sub shop at his "security post" between 12:30 and 1 a.m., he "saw another one of [his] associate[s] name[d] David Payton 'DP' drive up in his car and jump[ ] out with a gun in his hand." Austin called out "What you on man[?]" to Payton, who told Austin to "fall back" and then continued into the sub shop. Austin was a few steps behind Payton when "out of nowhere [he] heard 2 [to] 3 gun shots then a man ran out the sub shop. [Austin] took a quick look in the sub shop while [he] ran for cover, [he] heard afew [sic] more shots and saw [Payton] run back to his car and drive off." When Austin looked inside the sub shop after Payton left, he saw Byrd "on the floor shot up" and then left the scene.

         ¶ 24 Austin further averred that earlier on the day of the shooting, he was with Byrd when he and Payton "got into it" about whose "drops should be sold on certain nights." Austin "was forced to leave the hood" to avoid being killed because "some of the Vice Lords close to [Byrd] *** claimed [Austin] had a role in [Payton] ambushing [Byrd]." Austin then went back to his "old neighborhood." In 2014, Austin reconnected with "Ms. Rawls" who he "used to mess with." She told him she had a child with petitioner and that he was in prison for killing Byrd. After Austin explained that petitioner did not kill Byrd and that Payton did that "crazy stuff, " she asked him to inform the State's Attorney's office. Austin declined, so she asked him to prepare an affidavit.

         ¶ 25 Randy Norwood's affidavit states, in relevant part, that at around 12:30 a.m. on January 16, 2001, he was in an apartment at Ferdinand Street and Lawler Avenue with Cedric Redmond. After he heard a knock at the door, Redmond let Payton in, and Norwood overheard "Payton ask [Redmond] if he had a gun that he could borrow for a few minutes." Payton said he "needed a gun real fast, since he just seen [Byrd] at the sub shop on Cicero, when Payton was dropping off Mario Nixon and Martel [sic] Halbert." Payton told Redmond "that he was just going to scare [Byrd] so he can stay off his turf and stop him from playing games" and Redmond gave "Payton a black revolver maybe a .38 or .32 type of gun."

         ¶ 26 Norwood further averred that when Payton did not return with the gun, they heard that Payton had shot Byrd at the sub shop that morning and that Byrd was dead. "This all started an all out war" between Byrd's crew and Payton's crew. "[T]he word on the street" was that Byrd's "crew finally caught up with Payton sometime in late 2003 in revenge for [Byrd's] death, " and "they also found out that [Redmond] gave [sic] the gun that killed [Byrd]." According to "rumors on the street, " Redmond "was killed because of this but nobody knows who killed them." When Norwood heard what happened to Redmond, he "didn't want to get involved" out of concern for his safety. "[He] knew [Payton's] younger brother [petitioner] was locked up for [Byrd's] murder and didn't want to get involved."

         ¶ 27 In addition, Norwood averred that he viewed the video surveillance tape of the shooting and he was "positive" that Payton was "the man on the surveillance tape" because he was the same height and weight and "had on the same exact clothes" that Payton was wearing when Norwood saw him earlier that morning.

         ¶ 28 This time, the petition for leave to file a successive postconviction petition was heard by Judge Jorge Luis Alonso, who has since been appointed to the federal bench in 2014. Although Judge Alonso found that the affidavits were newly discovered evidence, he concluded that they were not of such a conclusive character as would probably change the result on retrial. In its written order denying petitioner leave to file, the trial court found:

"This evidence is not 'of such conclusive character' that it would 'probably change the result on retrial.' Neither witness states that he actually saw Payton commit the shooting or that [petitioner] was not at the scene. Nothing in either affidavit might explain why two eyewitnesses from the sub shop positively identified the shooter as [petitioner]. The theory that Payton committed the murder remains directly rebutted by the record, as [petitioner] was convicted based on positive eyewitness testimony that [petitioner] was the shooter." (Emphasis in original.)

         ¶ 29 On appeal, petitioner maintains that the trial court erred in denying his second motion for leave to file a successive postconviction petition. He contends that the Austin and Norwood affidavits show that he made a colorable claim of actual innocence that should be tested at the second stage of a postconviction proceeding.

         ¶ 30 However, before turning to our analysis of petitioner's issue on appeal, we note that this court has become aware that petitioner has been pursuing the same claim as part of proceedings on a federal habeas corpus petition, which petitioner initially filed in 2010 in the federal district court for the Northern District of Illinois before Judge Virginia Kendall. Brown v. Gaetz, No. 10 C 1463, 2015 WL 1976366, at *1 (N.D. Ill. May 1, 2015) (certificate of appealability denied 7th Cir. No. 15-2156 (Feb. 4, 2016)); see People v. Davis, 65 Ill.2d 157, 161 (1976) (a court may take judicial notice of facts capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy). Petitioner was appointed counsel in those proceedings in February 2011 and supplemented his petition. Those proceedings were stayed twice, due to petitioner's proceedings in state court. The stay was lifted after our previous appellate judgment, briefing was completed in the federal court, and petitioner requested a stay, again, based on the proceedings on this second successive petition.

         ¶ 31 In 2015, Judge Kendall refused petitioner's request to stay the habeas proceedings, finding that those proceedings had "already been stayed twice to allow [him] to resolve pending state law claims and a third stay is not warranted." Among other claims made before the federal court, petitioner contended that he was actually innocent based on the affidavits of "Terrell Austin, Randy Norwood, and Martell Halbert *** essentially claiming that Brown's now-deceased half-brother, [sic] David Payton, was the shooter in this case." The federal court utilized the "fundamental miscarriage of justice" actual innocence standard also used in Illinois to review the totality of the evidence presented at trial and petitioner's proffered evidence. It questioned the timeliness of petitioner's proffered evidence but found that it "need not rely exclusively upon such dilatoriness" because petitioner's evidence "d[id] not sufficiently rebut the evidence presented by the state at trial." The court noted that the "only 'new' eyewitness of the shooting is Martell Halbert, " that Austin was only present outside of the sub shop, and that Norwood was not present at or immediately near the scene of the crime. The federal court concluded, "Against the state's six witnesses and corroborating surveillance video, the affidavits of these four witnesses simply do not warrant the application of the miscarriage of justice exception or an evidentiary hearing. [Citations.] After reviewing the evidence, old and new, of Brown's guilt, this Court cannot conclude that 'no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.' " Brown, 2015 WL 1976366, at *10 (N.D. Ill. May 1, 2015) (certificate of appealability denied 7th Cir. No. 15-2156 (Feb. 4, 2016) (quoting Coleman v. Lemke, 739 F.3d 342, 254 (7th Cir. 2014)).

         ¶ 32 In light of the fact that another court has already considered the issue that petitioner currently brings before this court, this court ordered the parties to brief the issue of whether petitioner's claim is barred by res judicata, collateral estoppel, or law of the case-preclusion doctrines that prevent a litigant "from 'taking two bites out of the same appellate apple.' " People v. Tenner, 206 Ill.2d 381, 395-97 (2002) (quoting People v. Partee, 125 Ill.2d 24, 37 (1988)). Petitioner contends that the denial of his federal habeas petition has no preclusive effect because the question before this court is not identical to the one before the habeas court. Petitioner alternatively requests that this court reach the merits of his claim "in the interest of fundamental fairness." The State contends that petitioner's claim has already been decided against him in a final judgment by the federal habeas court, and accordingly, this court should apply collateral estoppel to bar his claim.

         ¶ 33 Although we would be inclined to find petitioner's claim precluded, we need not reach this issue. Even assuming that collateral estoppel does not apply or bar petitioner's claim, or if we were to accept petitioner's request to reach the merits of his claim based on fundamental fairness, we would reach the same conclusion that was reached by both the federal court and the circuit court-that petitioner has failed to raise a colorable claim of actual innocence.

         ¶ 34 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)) provides a tool by which those under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. 725 ILCS 5/122-1(a)(1) (West 2010); People v. Coleman, 183 Ill.2d 366, 378-79 (1998). Postconviction relief is limited to constitutional deprivations that occurred at the original trial. Coleman, 183 Ill.2d at 380. "A proceeding brought under the [Act] is not an ...

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